Madras High Court
M.Farook Buhari vs S.D.Premchand on 27 March, 2024
Author: M.Sundar
Bench: M.Sundar
A.S. No.67 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 27.03.2024
CORAM
THE HONOURABLE MR.JUSTICE M.SUNDAR
and
THE HONOURABLE MRS. JUSTICE K.GOVINDARAJAN THILAKAVADI
A.S. No.67 of 2024
and
C.M.P. No.2337 of 2024 in A.S. No.67 of 2024
1.M.Farook Buhari
2.Maimoona Buhari
3.Mumtaj Buhari
4.M.B.Haja Abdul Nazeer
5.Nazira Begum
6.Shah Nawaz
7.Sithi Jahara .. Appellants
Vs.
1.S.D.Premchand
2.D.P.Vardhaman
3.Abdul Kader Buhari
4.Jahanara Begum .. Respondents
Appeal Suit filed under Section 96 of C.P.C. against the
judgment and decree dated 30.06.2023 and modified judgment
and decree dated 08.12.2023 passed by learned XXIII Additional
Judge, City Civil Court, Chennai in O.S.No.915 of 2020 (C.S.
No.146 of 2013).
For Appellants : Ms.R.Ramya
For Respondents : Mr.N.Nagu Sah
and Mr.N.Varadha Rajan
for R1 & R2
https://www.mhc.tn.gov.in/judis
1/22
A.S. No.67 of 2024
JUDGMENT
(Judgment of the Court was delivered by M.Sundar, J.) This common judgment/decree and order will dispose of the captioned 'main appeal' (hereinafter 'AS' for the sake of brevity) and the captioned 'Civil Miscellaneous Petition' (hereinafter 'CMP' for the sake of brevity).
2. Before we proceed further, we deem it appropriate to reproduce the proceedings made by us in the previous listings on 28.02.2024, 13.03.2024 and 20.03.2024 which read as follows:
Proceedings dated 28.02.2024:
'Captioned main appeal i.e., 'A.S.No.67 of 2024' [hereinafter 'said main AS' for the sake of brevity] is a regular first appeal under Section 96 of 'the Code of Civil Procedure, 1908' ['CPC' for the sake of brevity] and the same has been filed assailing a judgment and decree dated 30.06.2023 made in O.S.No.915 of 2020 [CNR No.TNCH01-004500-2020], originally C.S.No.146 of 2013 on the file of Original Side of this Court. To be noted, the decree was made by 'XXIII Additional Judge, City Civil Court, Chennai' [hereinafter 'said trial Court' for the sake of convenience and clarity]. This 30.06.2023 judgment and decree shall hereinafter be referred to as 'impugned judgment' for the sake of convenience and clarity.
https://www.mhc.tn.gov.in/judis 2/22 A.S. No.67 of 2024
2. In the hearing today, Mr.T.V.Ramanujun, learned Senior counsel instructed by Ms.R.Ramya, counsel on record for the appellant in the said main AS, for petitioner in captioned CMP and Mr.N.Nagu Sah, assisted by Mr.N.Varadha Rajan, who has lodged caveat on behalf of both the respondents are before us.
3. To be noted, defendants 2, 4 to 8 and 10 in said trial Court are the seven appellants in said main AS and two plaintiffs in said trial Court are the two respondents in the said main AS.
4. As regards the suit in the said trial Court, short facts are that the two plaintiffs [to be noted, we are referring to the parties as per their ranks in the said trial Court for the sake of convenience and clarity] are landlords qua a demised property at 'Door No.82, Anna Salai, Chennai – 600 002' [hereinafter 'demised property' for the sake of convenience] and defendants are tenants under the landlords in the demised property; that according to the tenants, the contractual rent is Rs.2000/- per month computed in accordance with the English calendar and that according to the landlords, the contractual rent is Rs.6,000/- per month computed in accordance with the English calendar; that the landlords on 01.04.1997 filed R.C.O.P.No.648 of 1997 on the file of XIV Small Causes Court, Chennai under Section 4 of erstwhile 'the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 [Tamil Nadu Act 18 of 1960]' {hereinafter 'Rent Control Act' for the sake of convenience and clarity} seeking fixation of fair rent; that XIV Small Causes Court in and by an https://www.mhc.tn.gov.in/judis 3/22 A.S. No.67 of 2024 order dated 18.12.2003 fixed the fair rent at Rs.57,294/- per month; that the tenant did not file any appeal under Section 23 of Rent Control Act but the landlords carried the matter in appeal (obviously under Section 23 of Rent Control Act) vide R.C.A.No. 48 of 2007 on the file of VIII Small Causes Court, Chennai and Rent Control Appellate Authority vide order dated 16.11.2010 {after full contest} dismissed the appeal confirming the fixation of fair rent at Rs.57,294/- by the Rent Controller; that this order of Rent Control Appellate Authority has attained legal quietus/finality is the undisputed factual position as between the parties; that in the interregnum, landlords filed a eviction petition vide R.C.O.P.No.1410 of 1997 on the file of XI Small Causes Court, Chennai on the ground of 'acts of waste' under Section 10(2)(iii) of Rent Control Act and XI Small Causes Court (Rent Controller) passed an order of eviction; that the landlords launched execution petition in the XI Small Causes Court for executing this eviction order vide E.P.No.224 of 2004 and in the E.P, the landlords ultimately, took possession through Court on 14.06.2004; that thereafter, on 21.12.2012, the landlords presented the plaint vide aforementioned suit i.e., 'Originally C.S.No.146 of 2013, ultimately O.S.No.915 of 2020 on the file of the XXIII Additional Judge's Court, Chennai' [hereinafter 'said suit' for the sake of convenience and clarity] claiming inter alia a sum of Rs.44,36,931/- as arrears of rent (inter alia difference between contractual rent and fair rent fixed by Court) together with interest at the rate of 12% per annum from the date of plaint to the date of realization;
https://www.mhc.tn.gov.in/judis 4/22 A.S. No.67 of 2024 that the said trial Court, after full contest, decreed the suit in full as regards the principal i.e., Rs.44,36,931/- but as regards the interest, the said trial Court in and vide the impugned judgment awarded interest at the rate of 12% per annum from the date of filing of the suit (taken as 06.03.2013) till the date of decree (30.06.2023) and 6% future interest i.e., 6% per annum from the date of decree to the date of realization; that the tenants, more particularly D2, D4 to D8 and D10 are in appeal vide captioned said main AS as alluded to supra and as already alluded to supra, the two plaintiffs, who are landlords and have been arrayed as respondents are on caveat. Learned counsel for caveator is before us.
5. In the hearing today, there is no disputation or contestation about the aforesaid facts.
6. Mr.T.V.Ramanujun, learned Senior counsel submitted that the suit is barred by limitation whereas learned counsel for caveator submitted to the contrary.
7. Before we set out the bone of contention, it is necessary to make it clear that there is no disputation or contestation as between the two sides on the following points:
i) the applicable article as regards limitation is Article 52 vide Part II of FIRST DIVISION of the schedule to the 'Limitation Act, 1963' {hereinafter 'Limitation Act' for the sake of convenience} which says that the limitation is three years from the date on which the arrears became due qua suits for arrears of rent;
https://www.mhc.tn.gov.in/judis 5/22 A.S. No.67 of 2024
ii) the fair rent fixed by the Rent Controller i.e., Rs.57, 294/- per month is payable from the date of filing of Section 4 petition i.e., date of filing of R.C.O.P.No.648 of 1997 on the file of XIV Small Causes Court, Chennai, which is 01.04.1997;
iii) the fair rent fixed by the Rent Controller attained finality only on 16.11.2010 when VIII Additional Small Causes Court i.e., Rent Control Appellate Authority dismissed R.C.A.No.48 of 2007;
iv) The 'period of limitation' vide Section 2(j) of Limitation Act is three years under Article 52 as alluded to supra.
8. The bone of contention is only with regard to the 'prescribed period'. To be noted, 'prescribed period' also is defined vide Section 2(j) of the Limitation Act. While according to learned Senior counsel for tenants the reckoning date is 14.06.2004 as the landlord-tenant relationship snapped on that day when possession of the demised property was taken through Court by the landlords and therefore, the 'prescribed period' according to him is 14.06.2004 to 14.06.2007, according to the learned counsel for landlords, the 'prescribed period' is 16.11.2010 to 16.11.2013 as the fair rent fixed by the Rent Controller attained finality only on 16.11.2010.
https://www.mhc.tn.gov.in/judis 6/22 A.S. No.67 of 2024
9. This Court having set out the sole bone of contention is now to decide on the question of limitation. As regards limitation, in the light of the language in which Section 3 of Limitation Act is couched, a Court will examine limitation i.e., as to whether a suit is barred by limitation even if limitation has not been set up as a defence. This being a regular first appeal under Section 96 of CPC, we continue to be a Court of facts and therefore, applying Section 3 we would test the neat question as to whether the aforementioned suit being O.S.No.915 of 2020 (originally C.S.No.146 of 2013) on the file of Original Side of this Court, presented on 21.12.2012 is barred by limitation or not. The answer to this question will conclusively decide the captioned first appeal.
10. In the above scenario, As regards CMP, both sides submitted, on instructions, that they will explore the possibility of settlement and revert to this Court.
11. Be that as it may, the main appeal also can be heard out, if there is no settlement, as the bone of contention is as set out supra.
12. Both sides requested for rescheduling by two weeks. Request acceded to.
List a fortnight hence. List on 13.03.2024 under the caption 'FOR REPORTING SETTLEMENT or FOR ARGUMENTS'.' Proceedings dated 13.03.2024:
'Matter mentioned at half past ten.
https://www.mhc.tn.gov.in/judis 7/22 A.S. No.67 of 2024
2. Ms.R.Ramya and Mr.N.Varadha Rajan, learned counsel on both sides are before us. To be noted, captioned matter is listed under the cause list caption 'FOR REPORTING SETTLEMENT or FOR ARGUMENTS'.
3. Aforementioned learned counsel on both sides submit that one of the parties to the proceedings died and therefore, the settlement talks though underway could not be completed.
4. Learned counsel on both sides request for listing one week hence.
List on 20.03.2024 under the same cause list caption 'FOR REPORTING SETTLEMENT or FOR ARGUMENTS'.' Proceedings dated 20.03.2024:
'Matter mentioned at commencement of proceedings for the day.
2. Ms.Riktha Muralidhar, learned counsel for appellants and Mr.N.Varada Rajan, learned counsel for respondents are before this Court.
3. To be noted, captioned matter is listed under the cause list caption 'FOR REPORTING SETTLEMENT OR FOR https://www.mhc.tn.gov.in/judis 8/22 A.S. No.67 of 2024 ARGUMENTS'.
4. Aforementioned counsel on both sides submit that settlement has been arrived at and they submit that memorandum of compromise can be filed in this Court if the captioned matter is listed one week hence. Both sides request for rescheduling of the captioned matter. Common request acceded to.
5. List under the same cause list caption i.e., 'FOR REPORTING SETTLEMENT OR FOR ARGUMENTS' one week hence. List on 27.03.2024.'
3. The aforementioned proceedings capture the crux and gravamen of the lis as well as the trajectory the matter has taken thus far. Therefore, we are not dilating and setting out the same again but we deem it appropriate to say that the aforementioned proceedings will form part of this consent judgment/decree and order as the same will serve the purpose of better appreciation of this consent judgment/decree and order.
4. Adverting to aforementioned earlier proceedings today, Ms.R.Ramya, learned counsel on record for appellants and https://www.mhc.tn.gov.in/judis 9/22 A.S. No.67 of 2024 Mr.N.Nagu Sah along with Mr.N.Varadha Rajan, learned counsel on record for respondents 1 and 2 are before us. To be noted, respondents 3 and 4 stand given up in the light of memo that shall be reproduced infra.
5. On behalf of the appellants, 6th appellant Mr.Shah Nawaz, S/o.Mr.A.M.B.Haja Mohideen Buhari for himself and the other six appellants and the two respondents viz., Mr.S.D.Premchand (first respondent) and his son Mr.D.P.Vardhaman (second respondent) are before us.
6. The aforementioned learned counsel on both sides submit in unison in one voice that the parties have arrived at a settlement. They have reduced the terms of settlement to a 'Joint Consent Memo dated 27.03.2024' (hereinafter 'said JCM' for the sake of brevity) and both sides request for a consent decree in terms of said JCM. A scanned reproduction of said JCM with docket is as follows:
https://www.mhc.tn.gov.in/judis 10/22 A.S. No.67 of 2024 https://www.mhc.tn.gov.in/judis 11/22 A.S. No.67 of 2024 https://www.mhc.tn.gov.in/judis 12/22 A.S. No.67 of 2024 https://www.mhc.tn.gov.in/judis 13/22 A.S. No.67 of 2024 https://www.mhc.tn.gov.in/judis 14/22 A.S. No.67 of 2024 https://www.mhc.tn.gov.in/judis 15/22 A.S. No.67 of 2024 https://www.mhc.tn.gov.in/judis 16/22 A.S. No.67 of 2024
7. The identity proof of the parties before us are as follows:
https://www.mhc.tn.gov.in/judis 17/22 A.S. No.67 of 2024 https://www.mhc.tn.gov.in/judis 18/22 A.S. No.67 of 2024
8. The parties before us on both sides do not dispute the identity of each other. This is recorded.
9. The litigants/parties before us confirm that said JCM was signed by them on their own volition out of free will and after https://www.mhc.tn.gov.in/judis 19/22 A.S. No.67 of 2024 understanding the contents and both sides requested for a consent decree in terms of said JCM. Both sides represented that they would abide by and adhere to all the terms, clauses and covenants in said JCM. As regards 6th appellant, Mr.Shah Nawaz, S/o.Mr.A.M.B.Haja Mohideen Buhari, he confirms that he would stand on behalf of appellants 1 to 5 and 7 with regard to compliance qua terms of said JCM and that he takes full responsibility in this regard. This statement is also recorded.
Learned counsel on record for the appellants also confirms this position as she has instructions from the other appellants.
10. The two respondents confirm receipt of RTGS transfers and the receipt of post dated cheques.
11. In the light of the narrative thus far, captioned AS i.e., A.S. No.67 of 2024 will now stand disposed of so that judgment and decree be drawn up on the basis of this judgment and the said JCM will form part of the decree. As regards captioned CMP, in the light of the narrative thus far, the same is disposed of as closed.
12. Before we conclude, we deem it appropriate to record https://www.mhc.tn.gov.in/judis 20/22 A.S. No.67 of 2024 that though said JCM talks about refund of court fee in the trial Court as well as in this Court, in the hearing, Ms.R.Ramya and Mr.N.Nagu Sah had fairly submitted that they are not pressing for refund of court fee as they are getting a decree from this Court and both sides have made endorsements in this Court vide a parenthesis as regards that portion of paragraph 3 of said JCM which talks about refund of court fee. To be noted, scanned reproduction of said JCM supra contains this 'not pressed portion' duly signed by both sides.
13. Captioned AS and captioned CMP are disposed of in the aforesaid manner. There shall be no order as to costs.
(M.S.J.) (K.G.T.J.)
27.03.2024
Index:Yes/No
Neutral Citation: Yes/No
mmi
To
The XXIII Additional Judge,
City Civil Court, Chennai.
https://www.mhc.tn.gov.in/judis
21/22
A.S. No.67 of 2024
M.SUNDAR.J.,
and
K.GOVINDARAJAN THILAKAVADI, J.,
mmi
A.S. No.67 of 2024
27.03.2024
https://www.mhc.tn.gov.in/judis
22/22